Acts and Regulations

2023-20 - Clean Environment Act

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NEW BRUNSWICK
REGULATION 2023-20
under the
Clean Environment Act
(O.C. 2023-62)
Filed March 29, 2023
1Section 2 of New Brunswick Regulation 2008-54 under the Clean Environment Act is amended
(a) in the definition “brand owner”
(i) in subparagraph (b.3)(iv) of the English version by striking out “and” at the end of the subparagraph;
(ii) by adding after paragraph (b.3) the following: 
(b.4) in Part 5.5, with respect to beverage containers sold, offered for sale or distributed in or into the Province, a person who
(i) is a manufacturer of beverage containers,
(ii) is a distributor of beverage containers,
(iii) is an owner or licensee of a registered or unregistered trademark under which beverage containers are sold, offered for sale or distributed, or
(iv) if beverage containers are imported into the Province, is the first person to sell the beverage containers; and
(iii) in paragraph (c) by striking out “(b.2) or (b.3)” and substituting “(b.2), (b.3) or (b.4)”;
(b) in the definition “packaging”
(i) in paragraph (a) by striking out “35 or 50.11” and substituting “35, 50.11 or 50.91”;
(ii) by repealing paragraph (b);
(c) by adding the following definitions in alphabetical order: 
“beverage” means a ready-to-serve liquid that is intended for human consumption but does not include milk, plant-based milk product alternatives that are fortified and a source of protein, unprocessed apple cider, concentrated drinks, infant formula, meal replacements or formulated liquid diets. (boisson)
“beverage container” means a sealed container, including all its component parts, that contains a beverage in a maximum quantity of five litres, and includes a box or similar container used to contain, protect, handle, deliver or present refillable glass beer bottles. (récipient à boisson)
2Subsection 7(4) of the Regulation is amended by striking out “50.67 or 50.85” and substituting “50.67, 50.85 or 50.981”.
3Subsection 11(1) of the Regulation is amended by adding after paragraph (b.4) the following:
(b.5) with respect to the beverage containers stewardship program, beginning in 2025, the following information:
(i) the amount of fees, interest on outstanding fees and penalties remitted to the Board;
(ii) the results of any inspections conducted under this Regulation;
(iii) a description of all enforcement activities; and
(iv) a description of other related activities of the Board;
4Paragraph 20(2)(b) of the Regulation is amended by striking out “50.67 or 50.85” and substituting “50.67, 50.85 or 50.981”.
5Subsection 21(2) of the Regulation is amended
(a) in paragraph (e) of the English version by striking out “and” at the end of the paragraph;
(b) in paragraph (f) by striking out the period at the end of the paragraph and substituting a comma followed by “and”;
(c) by adding after paragraph (f) the following:
(g) the management of beverage containers, if the money is recovered from a brand owner under Part 5.5.
6Subsection 50.77(1) of the English version of the Regulation is amended in the portion preceding paragraph (a) by striking out “As soon as after” and substituting “As soon as practicable after”.
7The Regulation is amended by adding after section 50.87 the following: 
5.5
DESIGNATED MATERIAL –
BEVERAGE CONTAINERS
Definitions
50.9The following definitions apply in this Part.
“consumer” means a person who uses a beverage container for the person’s own purpose, and not for the purpose of resale.(consommateur)
“retailer” means a person who sells or offers for sale in the Province beverage containers to a consumer for consumption on or off its premises.(détaillant)
“return facility” means a collection facility that accepts empty beverage containers from persons who wish to return them and that is identified as a collection facility in an approved beverage containers stewardship plan. (point de récupération)
“reuse” , with respect to an empty beverage container, means to process in such a way that the empty beverage container is capable of being used by a consumer in a manner that would be compliant with the Act. (réutiliser)
Beverage containers as designated materials
50.91Beverage containers are designated materials for the purposes of section 22.1 of the Act.
Restriction on supply of beverage containers
50.911On or after April 1, 2024, no brand owner shall sell, offer for sale or distribute a beverage container to a person in the Province unless the brand owner is registered with the Board.
Transitional provisions respecting registration, stewardship plans, performance measures and targets
50.92(1)This section applies to a brand owner who sells, offers for sale or distributes a beverage container within the Province immediately before April 1, 2023.
50.92(2)A brand owner shall, on or before August 1, 2023, submit to the Board for approval the following:
(a) an application for registration;
(b) a beverage containers stewardship plan; and
(c) one or more performance measures, by material type, used to assess the goals and objectives of the brand owner’s stewardship plan as well as the targets, by material type, set by the brand owner for each of the performance measures.
50.92(3)A brand owner shall, on or before March 31, 2024, attempt to enter into an agreement for the provision of services with an owner or operator of a return facility that is in operation on or before that date, and the agreement shall be for a term of at least two years beginning on April 1, 2024.
50.92(4)A brand owner shall implement on April 1, 2024, the beverage containers stewardship plan referred to in paragraph (2)(b) if the Board registers the brand owner and approves or imposes the stewardship plan and the performance measures and targets referred to in paragraph (2)(c).
50.92(5)Despite section 50.911, a brand owner referred to in subsection (1) may continue selling, offering for sale or distributing beverage containers within the Province until the Board renders its decision in respect of the brand owner’s application for registration.
50.92(6)If the Board refuses to register a brand owner referred to in subsection (1), the brand owner shall cease selling, offering for sale or distributing beverage containers immediately on receiving notice of the Board’s decision to refuse the application.
Submission of beverage containers stewardship plan
50.921(1)With its application for registration under this Regulation, a brand owner shall submit a beverage containers stewardship plan for approval by the Board.
50.921(2)A stewardship plan shall apply to the manufacture, storage, collection, transportation, reuse, recycling, disposal and other handling of beverage containers that are sold, offered for sale or distributed within the Province.
Designation of agent
50.93A brand owner may designate an agent to act on behalf of the brand owner with respect to the brand owner’s obligations under this Regulation.
Contents of beverage containers stewardship plan
50.931A beverage containers stewardship plan shall contain the following:
(a) the plan for the collection, transportation, storage, reuse and recycling of empty beverage containers within the Province, including the empty beverage containers of other brand owners;
(b) information on the expected quantity or weight of beverage containers, by material type, to be distributed within the Province and the expected quantity or weight of empty beverage containers, by material type, to be collected, reused, recycled, composted or recovered;
(c) information on the province-wide collection system, including information with respect to return facilities, by material type, to be used by the consumer;
(d) the location of any long-term storage, containment or processing facilities for empty beverage containers;
(e) information on deposit and refund amounts, including a description of how deposits will be collected and refunds remitted;
(f) a description of how existing collection and processing systems were considered to maximize waste diversion in the Province;
(g) the geographical areas that will be used for annual reporting purposes;
(h) the plan for the provision of services in remote or rural areas;
(i) the plan for the management of empty beverage containers, by material type, in adherence to the following order of preference:
(i) reuse;
(ii) recycle or compost;
(iii) recovery of energy; and
(iv) disposal in compliance with the Act;
(j) a description of the efforts being made to redesign beverage containers to improve reusability and recyclability;
(k) information on current and future research and development activities in the Province related to the management of beverage containers;
(l) the communications plan to inform consumers of the stewardship plan, including the consumer’s reasonable and free access to return facilities;
(m) a description of how empty beverage containers will be managed, by material type, in a manner that employs environmental, human health and safety standards that meet or are more strict than applicable laws;
(n) the plan for the elimination or reduction of the environmental impact of empty beverage containers, by material type;
(o) the plan to manage, prevent and reduce the littering of empty beverage containers;
(p) a description of the greenhouse gas emission impact that will result from the implementation of the stewardship plan and opportunities for reducing the impact;
(q) a description of the material types that will be used for performance measures, targets and annual reporting purposes; and
(r) a dispute resolution procedure to deal with disputes arising between the brand owner and a service provider.
Approval or imposition of beverage containers stewardship plan
50.94(1)As soon as practicable after a beverage containers stewardship plan has been submitted to the Board, the Board shall
(a) approve the stewardship plan for a period of time not to exceed five years, or
(b) reject the stewardship plan with written reasons.
50.94(2)If the Board rejects a beverage containers stewardship plan, the Board may require the brand owner to
(a) comply with a stewardship plan prepared and approved by the Board, or
(b) resubmit a stewardship plan within the period of time specified by the Board.
50.94(3)The Board may refuse to register or may suspend the registration of a brand owner if the brand owner does not submit a stewardship plan within the period of time specified by the Board under paragraph (2)(b).
50.94(4)A stewardship plan referred to in paragraph (2)(a) expires on the date set by the Board, but the period of time for which the stewardship plan is to be effective shall not exceed five years.
50.94(5)If the Board rejects a stewardship plan submitted by a brand owner and does not act under subsection (2), the Board shall refuse to register the brand owner or shall suspend or cancel the registration of the brand owner.
Compliance with beverage containers stewardship plan
50.941A brand owner shall implement and comply with the beverage containers stewardship plan as approved or imposed by the Board under section 50.94.
Renewal of beverage containers stewardship plan
50.95(1)At least 90 days before the expiry date of a beverage containers stewardship plan approved or imposed by the Board, a brand owner shall submit a stewardship plan to the Board for review and approval.
50.95(2)Sections 50.931 to 50.941 apply with the necessary modifications to a stewardship plan submitted under this section.
Amendment of beverage containers stewardship plan
50.951(1)The Board may amend an approved or imposed beverage containers stewardship plan
(a) to correct a clerical error,
(b) to reflect a change in the name or address of a brand owner, or
(c) on the request of the brand owner.
50.951(2)A brand owner may at any time apply to have its stewardship plan amended, and sections 50.931 to 50.941 apply with the necessary modifications to the amended plan.
Performance measures and targets
50.96(1)When a brand owner submits a beverage containers stewardship plan to the Board for review and approval under section 50.95, the brand owner shall also submit for approval to the Board one or more performance measures, by material type, used to assess the goals and objectives of the brand owner’s stewardship plan as well as the targets, by material type, set by the brand owner for each of the performance measures.
50.96(2)The Board shall, as soon as practicable after the performance measures and targets have been submitted to the Board under subsection (1),
(a) approve the performance measures and targets, by material type, or
(b) reject the performance measures and targets, by material type, with reasons.
50.96(3)If the Board rejects the performance measures and targets, the Board may require the brand owner to
(a) comply with performance measures and targets, by material type, prepared and approved by the Board, or
(b) resubmit performance measures and targets, by material type, within the period of time specified by the Board.
50.96(4)The Board may suspend the registration of a brand owner if the brand owner does not submit performance measures and targets, by material type, within the period of time specified under paragraph (3)(b).
50.96(5)If the Board rejects the performance measures and targets, by material type, submitted by a brand owner and does not act under subsection (3), the Board shall suspend or cancel the registration of the brand owner.
Deposit and refund
50.961(1)On or after April 1, 2024, a retailer shall collect from a consumer, at the time of the sale of a beverage container, a deposit in the amount specified in the beverage containers stewardship plan, and that amount includes any applicable federal and provincial sales tax.
50.961(2)The amount of the refund for an empty beverage container is equal to the amount of the deposit collected from a consumer for the beverage container.
Annual report and other information
50.97(1)On or before April 30 in each year, beginning in 2025, a brand owner shall provide the Board with an annual report detailing the effectiveness of the beverage containers stewardship plan during the previous calendar year including, but not limited to, the following:
(a) the total amount of empty beverage containers, by material type,
(i) collected within the Province,
(ii) collected within the geographical areas specified in the stewardship plan, and
(iii) accepted by each return facility;
(b) the total amount of empty beverage containers, by material type, processed or in storage;
(c) the amount and percentage of empty beverage containers, by material type, collected that were reused, recycled, composted, recovered for energy, contained or otherwise treated or disposed of;
(d) a description of the types of processes utilized to reuse, recycle, compost, recover energy from, contain or otherwise treat or dispose of empty beverage containers, by material type;
(e) a description of efforts to redesign beverage containers to improve reusability and recyclability;
(f) a description of collection methods used and the location of return facilities;
(g) the location of any containment or processing facilities for empty beverage containers;
(h) the types of consumer information, educational materials and strategies adopted by the brand owner;
(i) the annual financial statements, as prepared by an independent auditor, of the revenues received and the expenditures incurred by the stewardship plan;
(j) an assessment of the performance of the brand owner’s stewardship plan that is prepared by an independent auditor; and
(k) any other information requested by the Board that relates to the stewardship plan.
50.97(2)Subject to subsection (3), at the same time a brand owner submits its annual report, it shall provide to the Board a statement in writing as to the total amount of beverage containers, by material type, distributed by it during the previous calendar year or during a period of time approved by the Board.
50.97(3)If a report referred to in subsection (1) or a statement referred to in subsection (2) is submitted by an agent designated under section 50.93, the report or statement and distribution information shall include only the aggregate information of all of the brand owners represented by the agent.
50.97(4)The information provided under subsection (2) to the Board by a brand owner who is not represented by an agent referred to in section 50.93 shall be treated as confidential.
Consumer information
50.971(1)On or after April 1, 2024, a brand owner shall, on request, provide to each retailer of its beverage containers educational and consumer material that informs consumers with respect to
(a) the brand owner’s beverage containers stewardship plan,
(b) access to return facilities, and
(c) the environmental and economic benefits of participating in the beverage containers stewardship program.
50.971(2)A brand owner shall not release any educational and consumer material referred to in subsection (1) unless the material has been submitted to the Board at least one month before its intended release.
50.971(3)Subsection (2) applies with the necessary modifications to any changes proposed to be made to the information supplied in the material referred to in subsection (1).
Passing on of costs
50.98(1)Subject to subsection (2), on or after April 1, 2024, a brand owner or a retailer, on behalf of a brand owner, may recover from the consumer costs associated with implementing or operating a beverage containers stewardship plan or costs associated with supplying material under section 50.971.
50.98(2)A brand owner or a retailer who recovers costs under subsection (1) shall integrate those costs
(a) into a total advertised sales price of a beverage container, and
(b) into the sales price of the beverage container on the receipt of sale.
50.98(3)A brand owner or a retailer is not prohibited from informing the public that the price of a beverage container includes costs recovered under subsection (1) and communicating those costs to the public.
Fees
50.981(1)The Board may charge a brand owner a fee established by the Board to cover the Board’s annual administrative costs in carrying out its duties under the Act and this Regulation in relation to beverage containers.
50.981(2)The annual administrative costs include office, operational and inspection expenses and the cost of salaries, benefits and expenses of members and employees of the Board that are attributable to the Board’s duties referred to in subsection (1).
50.981(3)The annual administrative costs of the Board incurred or to be incurred by it, together with any sum needed to make up any deficiency in the assessment for the preceding year, shall be borne equally by each brand owner.
50.981(4)The Board shall assess up to one-half of the amount established in subsection (1) on or before April 1 of the fiscal year in respect of which the costs are incurred and assess the remaining amount after December 1 of that fiscal year.
Remittance of fees, imposition of interest and penalties
50.99(1)A brand owner shall remit the fees provided for in section 50.981 at the times and in the manner directed by the Board.
50.99(2)If the Board is satisfied that a brand owner has not remitted fees fully in accordance with subsection (1), the Board may serve written notice on the brand owner requiring payment of the following amounts:
(a) the full amount of the fees that are outstanding;
(b) interest on the amount of the outstanding fees calculated monthly at a rate not exceeding 2% per month; and
(c) a penalty in an amount established by the Board, which shall not exceed the amount of the outstanding fees.
50.99(3)A written notice under subsection (2) shall include the time and manner in which the payments required under that subsection are to be made.
50.99(4)A brand owner served with a written notice under subsection (2) shall pay the amounts set out in the notice in accordance with the notice.
50.99(5)All fees, interest and penalties that are not paid to the Board in accordance with a written notice constitute a debt due to the Board.
50.99(6)The Board may, under the signature of the proper officer, issue a certificate setting out the name of a brand owner who has not paid fees, interest or penalties in accordance with a written notice and certifying the total amounts of the fees, interest or penalties remaining unpaid, and the certificate, without proof of the appointment, authority or signature of the person purporting to have signed it, is admissible in evidence and is, in the absence of evidence to the contrary, proof of the amount of the fees, interest and penalties remaining unpaid.
Use of fees, interest and penalties
50.991The Board shall use the fees, interest and penalties remitted to it or paid to it under this Part solely to meet its purposes in relation to beverage containers as established under the Act and this Regulation and for no other purpose.
Commencement
8This Regulation comes into force on April 1, 2023.